# [1950] 1 S.C.R. 766

- **Citation:** [1950] 1 S.C.R. 766
- **Court:** Supreme Court of India
- **Decided:** 1950-06-13
- **Case number:** Civil Appeal No. LIX of 1949
- **Bench:** SAIYID FAZL Au, Mukherjea, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1950-1-s-c-r-766-151
- **Pages:** 15

## Headnote

Hindu Law-Gift to female owner-Construction-Gift for
maintenance-Estate conveyed, whether absolute or limited-Use of
the word 'Malik', effect of.
·
In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the
words used; the surrounding circumstances are to be considered
but tbat is only for the purpose of finding out the intended
meaning of the words which have actually been employed.
To convey an absolute estate to a Hindu female, no express
power of a.lienaticn need be given ; it is enough if words of such
amplit11de are used as would convey full rights of ownership.
The term 'Malik' when used in a will or other document as
descriptive of the position which a. devisee or donee is intended to
hold, has been held apt to describe an owner possessed of lull
proprietary rights, including a. full right of alienation, unless there
is something in the context or in the surrounding circumstances
to indicate that such f11ll 11roprietory rights were not intended to
be conferred,
•
S.C.R.
SUPREME COURT REPORTS
767
The mere fact that • gift of property is made fot the Bupport
and maintenance of a female relation could nob be taken to be a
prima facie indication of the intention of the <loner, th.t the
donee was to enjoy the property only during her life-time. The
extent of interest, which the donee is to take, depends upon tha
intention o( the donor as expressed by the language used, and if
the dispositive words employed in the document are clear and
unambiguous and import absolute ownership1 the purpose of ihe
grant would not, by itself, restrict or cut down the interest. The
desire to provide maintenance or residence of the donee would
only show the motive which prompted the donor to make the gift,
but it could not be read as a measure of the extent of the gift.
Where a Hindu died leaving two widows, a widowed daughter·
in-law and a daughter's son, and a relative of the family sating as
guardian of the daughter's son's son who was then the nearest
reversioner got a. relinquishment deed fi·om the daughter-in-law
r'3nouncing all her claims to the estate and in return executed a
deed of ' tamliknama' to her with respect to certain properties
which ran as follows:
11 I have therefore, of my own accord and free will, without
any compulsion or coercion on the part of any one else while in
my proper senses made a Tamlik of a double-storied pucca built
shop ......... and & house and a kothri in Etawah ......... worth
Rs. 8,000 for purposee of rasidence of the Musammat (the
daughter-in-law) owned by the minor aforesaid ......... which at
preaent stands let out on rent to Sunder Lal, brother of
Mst. Meri a aforesaid ........ .in favour of Mst, Meria aforesaid,
widow of Ohhedi Lal and made her the owner (Malik) ":
Held, that there was nothing in the context of the document
or in the surrounding circumetances which would displace the
presumption of full proprietory rights which the use of the words
Malik' is apt ordinarily to convey and the daughter-in-law
obtained under the gift deed a full heritable and transferable title
to the properties conveyed thereby.
Rajendra Prasad v. Gopal Pra•ad (57 I.A. 296), Koliani Koer
v. Luchmee Parsad (24 W.R. 395), Tagore v. Tagore (I.A. Supp. 4 7)
Sasiman Chaudhur<>in v. Shib Narayan (49 I.A. 25), Biswanath
Prasad v. Chandrika (60 I.A. 56) relied on.
Raja Ram Baksh v. Arjun (60 I.A. 56), Woodayaditta Deb v.
Mukoond (22 W.R. 229) distinguished.

## Text

1950
766
SUI'REM:E COURT RE.PORTS
(1950]
that the impugned statute does not stand the test of
reasonableness and is therefore void.
Chi.'IJ-tama:n Rao
v.
The result therefore is that the orders issued by the
Tiu State of Depl,lty Commissioner on 13th June 1950 and 26th
Mndhya
September 1950 are void, inoperative and ineffective.
Prad•.••·
We therefore direct the respondents not to enforce the
M,ah.ajan J.
1950
Nov. li.
provisions contained in section 4 of the Act aga~n.st the
petitioners in any manner whatsoever. The pet1ttone>s
will have their costs of these proceedings in the two
petitions.
Agent for the petitioners
Rajinder Narain.
Petitions allowed.
m Nos. 78 and 79:
Agent for the respondent m
P.A. lv/~hta.
RAM GOPAL
II.
Nos. 78 and 79:
NAND LAL AND OTHERS
[SAIYID FAZL Au, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.]
Hindu Law-Gift to female owner-Construction-Gift for
maintenance-Estate conveyed, whether absolute or limited-Use of
the word 'Malik', effect of.
·
In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the
words used; the surrounding circumstances are to be considered
but tbat is only for the purpose of finding out the intended
meaning of the words which have actually been employed.
To convey an absolute estate to a Hindu female, no express
power of a.lienaticn need be given ; it is enough if words of such
amplit11de are used as would convey full rights of ownership.
The term 'Malik' when used in a will or other document as
descriptive of the position which a. devisee or donee is intended to
hold, has been held apt to describe an owner possessed of lull
proprietary rights, including a. full right of alienation, unless there
is something in the context or in the surrounding circumstances
to indicate that such f11ll 11roprietory rights were not intended to
be conferred,
•
S.C.R.
SUPREME COURT REPORTS
767
The mere fact that • gift of property is made fot the Bupport
and maintenance of a female relation could nob be taken to be a
prima facie indication of the intention of the <loner, th.t the
donee was to enjoy the property only during her life-time. The
extent of interest, which the donee is to take, depends upon tha
intention o( the donor as expressed by the language used, and if
the dispositive words employed in the document are clear and
unambiguous and import absolute ownership1 the purpose of ihe
grant would not, by itself, restrict or cut down the interest. The
desire to provide maintenance or residence of the donee would
only show the motive which prompted the donor to make the gift,
but it could not be read as a measure of the extent of the gift.
Where a Hindu died leaving two widows, a widowed daughter·
in-law and a daughter's son, and a relative of the family sating as
guardian of the daughter's son's son who was then the nearest
reversioner got a. relinquishment deed fi·om the daughter-in-law
r'3nouncing all her claims to the estate and in return executed a
deed of ' tamliknama' to her with respect to certain properties
which ran as follows:
11 I have therefore, of my own accord and free will, without
any compulsion or coercion on the part of any one else while in
my proper senses made a Tamlik of a double-storied pucca built
shop ......... and & house and a kothri in Etawah ......... worth
Rs. 8,000 for purposee of rasidence of the Musammat (the
daughter-in-law) owned by the minor aforesaid ......... which at
preaent stands let out on rent to Sunder Lal, brother of
Mst. Meri a aforesaid ........ .in favour of Mst, Meria aforesaid,
widow of Ohhedi Lal and made her the owner (Malik) ":
Held, that there was nothing in the context of the document
or in the surrounding circumetances which would displace the
presumption of full proprietory rights which the use of the words
Malik' is apt ordinarily to convey and the daughter-in-law
obtained under the gift deed a full heritable and transferable title
to the properties conveyed thereby.
Rajendra Prasad v. Gopal Pra•ad (57 I.A. 296), Koliani Koer
v. Luchmee Parsad (24 W.R. 395), Tagore v. Tagore (I.A. Supp. 4 7)
Sasiman Chaudhur<>in v. Shib Narayan (49 I.A. 25), Biswanath
Prasad v. Chandrika (60 I.A. 56) relied on.
Raja Ram Baksh v. Arjun (60 I.A. 56), Woodayaditta Deb v.
Mukoond (22 W.R. 229) distinguished.
APPELLATE juRISDICTION: Civil Appeal No. LIX
of 1949.
Appeal from the judgment of the Allahabad High
Court (Verma and Yorke JJ.) dated 6th September,
1943 in First Appeal No. 3 of 1940.
P. L. Banerjee (B. Banerjee, with him), for the
appellant.
J!lliO
Ram Gopa.l
v.
Na.nd Lat and
Othe1·~.
1950
Ram Gopal
v.
Nana. Lal and
Others.
JluleherjtJ'.l J.
768
SUPREME COURT REPORTS
[1950]
S. P. Sinha (N. C. Sen, with him), for the respondents.
1950. November 14. The court delivered judgment
as follows :-
M uKHERJEA ].-This appeal is directed against an
appellate judgment of a Division Bench of the Allahabad High Court dated September 6, 1943, by which
the learned Judges reversed a
decision of the
Civil Judge, Etawah. made in Original Suit No. 28
of 1936.
The suit was one commenced by the plaintiff, who
is respondent No. 1 in this appeal, for recovery of
possession of two items of immovable property-one, a
residential house and other, a shop-both of which are
situated in the town of Etawah.
The properties
admittedly formed part of the estate of one Mangat
Sen who died sometime towards the end of the last
century, leaving behind him, as his heirs, his two
widows, Mst. Mithani and Mst. Rani.
Mangat Sen
had a son named Chhedi Lal and a daughter named
Janki Kuar born of his wife Mst. Rani, but both of
them died during his lifetime.
Chhedi Lal had no
issue and he was survived by his widow Mst. Meria,
while J anki left a son named Thakur Prasad. J anki's
husband married another wife and by her got a son
named Babu Ram. On Mangat Sen's death, his properties devolved upon his two widows, and Mst. Rani
having died subsequently, Mst. Mithani came to hold
the entire estate of her husband in the restricted rights
of a Hindu widow.
On 27th November 1919, Mst.
Mithani surrendered the whole estate of her husband
by a deed of gift in favour of Thakur Prasad who was
the nearest reversioner at that time. Thakur Prasad
died in 1921, leaving a minor son named Nand Lal
who succeeded to his properties and this Nand Lal is
the plaintiff in the suit out of which this appeal
arises.
On 27th October 1921, there was a transaction entered into between Babu Ram on his own
behalf as well as guardian of infant Nand Lal on tlie
one hand and Mst. Meria, the widow of Chhedi Lal, on
..
S.C.R.
SUPREME COURT REPORTS
769
the other, by which two items of property which are
the subject-matter of the present litigation were conveyed to Meria by a deed of transfer which has been
described as a Tamliknama; and she on her part
executed a deed of relinquishment renouncing her
claims to every portion of the estate left by Mangal
Sen. It is not disputed that Meria took possession of
the properties on the basis of the Tamliknama and on
10th April 1923 she executed a will, by which these
properties were bequeathed to her three nephews, who
are the sons of her brother Sunder Lal. Meria died on
19th June 1924.
One Ram Dayal had obtained a
money decree against. Sunder Lal and his three sons,
and in execution of that decree the properties in suit
were attached and put up to sale and they were
purchased by Ram Dayal himself on 30th January
1934. On 1st June 1936, the present suit was instituted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation
that as they were given to Mst. Meria for her maintenance and residence, she could enjoy the same
only so long as she lived and after her death, they
reverted to the plaintiff. Sunder Lal, the brother of
Meria, was made the first defendant in the suit, and
his
three sons figured as defendants Nos. 2 to 4.
Defendant No. 5 is a lady named Chimman Kunwar
in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the
disputed property.
Ram Dayal, the decree-holder
auction purchaser, died in May 1935 and his properties vested in his daughter's son Ram Gopal under
a deed of gift executed by him in favour of the latter.
On 1st September 1938, Ram Gopal was added as a
party defendant to the suit on the plaintiff's application and he is defendant No. 6. The two other
defendants, namely, defendants 7 and 8, who were also
made parties at the same time, are respectively the
widow and an alleged adopted son of Ram Dayal.
The suit was contested primarily by defendant
No. 6, and the substantial contentions raised by him
in his written statement were of a two-fold character.
1960
Ram GopaZ
v.
Nana. Lal and
Othera.
Mukherjea J.
1950
Ram Gopal
v.
Na.nd Ltil and
Ot1uw&.
Mukh11rjea J.
770
SUPREME COURT REPORTS
[1950]
The first and the main contention was that Mst. Meria
got an absolute title to the disputed properties on the
strength of the 'Tamliknama' executed in her favour
by the guardian of the plaintiff and after her death,
the properties passed on to the three sons of Sunder
Lal who were the legatees under her will.
Ram
Dayal, it was said, having purchased these properties
in execution of a money decree against Sunder Lal and
his three sons acquired a valid title to them. The
other contention raised was that the suit was barred
by limitation. The trial Judge decided both these
points m favour of the contesting defendant and dismissed the plaintiff's suit. On appeal to the High
Court, the judgment of the Civil Judge was set aside
and the plaintiff's suit was decreed.
The defendant No. 6 has now come up on appeal to
this court and Mr. Peary Lal Banerjee, who appeared
in support of the appeal, pressed before us both the
points upon which the decision of the High Court has
been adverse to his client.
The first point raised by Mr. Banerjee turns upon
the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on
behalf of Nand Lal then an infant, by which the
properties in dispute were transferred to Mst. Meria
by way of a 'Tamliknama'. The question is whether
the transferee got, under it, an absolute interest in the
properties, which was heritable and alienable or was
it the interest of a life tenant merely.
The document
is by no means a complicated one.
It begins by a
recital of the events under which Nand Lal became
the sole owner of the properties left by Mangal Sen
and refers in this connection to the obligation on the
part of both Babu Ram and Nand Lal to "support,
maintain and console" Mst. Meria, the widow of the
pre-deceased son of Mangal Sen.
The document then
proceeds to state as follows :
"I have therefore, of my own accord and free will,
without any compulsion or coercion on the part of
any one else while in my proper senses made a Tamlik
of a double-storied pucca built shop ...... and a house
S..C.R.
SUPREME COURT REPORTS
771
and a kothri in Etawah ......... worth Rs. 8,000 for
19•0
purposes of residence of the Musammat, owned by the
minor aforesaid ...... which at present stands let out on
Bam Gopa.1
v.
rent to Sunder Lal, brother of Mst. Meria aforesaid
......... in favour of Mst. Meria aforesaid, widow of
Chhedi Lal and made her the owner (Malik). If any
portion or the whole of the property made a Tamlik of
for the purpose mentioned above passes out of the
possession of the Musammat aforesaid on account of
the claim of Nand Lal minor aforesaid, I and my
property of every sort shall be responsible and liable
for the same."
Nand Ji.al and
This document has got to be read along with the
deed of relinquishment, which is a contemporaneous
document executed by Meria renouncing all her
claims to the property left by Mangal Sen. The deed
of relinquishment like th<i Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mst. Mithani in
favour of Thakur Prasad, the gradual devolution of
the entire estate of Mangal Sen upon Nand Lal. It
states thereafter that Babu Ram, as the guardian of the
minor and also in his own right, "has under a Tamliknama dated this day made a 'Tamlik' in my favour of
a shop along with a Balakhana and a kota for my
maintenance and a house ....... for purpose of my residence which are quite sufficient for my maintenance."
"I have therefore, of my own accord", the document
goes on to say, "made a relinquishment of the entire
property aforesaid mentioned in the deed of gift ......
worth l~s. 25,000.
I do covenant and do give in writing that I have and shall have no claim to or concern
with the property ......... belonging to the minor aforesaid, nor has the property aforesaid remained subject
to my maintenance allowance nor shall I bring any
claim at any time." The schedule to the instrument,
it may be noted, gives a list of all the properties of
Mangal Sen in respect to which Mst. Mithani executed
a deed of gift in favour of Thakur Prasad, including
the two items of property covered by the 'Tamliknama' mentioned. aforesaid.
. .
.r
Oth6TS.
Mukherjea J.
I 050
Ram Gopal
v.
Nand Lal and
Others.
Mukktrjea J.
772
SUPREME COURT REPORTS
[1950]
In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the
intention from the words used ; the surrounding
circumstances are to be considered, but that is only for
the purpose of finding out the intended meaning of
the words which have actually been employed(')·
In
the present case the instrument of grant has been described as a 'Tamliknama ' which means a document
by which 'Maliki ' or ownership rights are transferred
and the document expressly says that the grantee has
been made a ' Malik' or owner. There are no express
words making the gift heritable and transferable; nor
on the other hand, is there any statement that the
transferee would enjoy the properties only during her
life-time and that they would revert to the grantor
after her death.
It may be taken to be quite settled that there is no
warrant for the proposition of law that when a grant
of an immovable property is made to a Hindu female,
she docs not get an absolute or alienable interest in such
property, unless such power is expressly conferred upon
her.
The reasoning adopted by Mr. Justice Mitter of
the Calcutta High Court in Kollani Koer v. Luchmee
Parsad(') which was approved of and accepted by the
Judicial Committee in a number of decisions, seems to
me to be unassailable. It was held by the Privy
Council as early as in the case of Tagore v. Tagore(')
that if an estate· were given to a man without express
words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of
inheritance. This is the general principle of law which
is recognised and embodied in section 8 of the Transfer
of Property Act and unless it is shown that under
Hindu Law a gift to a female means a limited gift or
carries with it the restrictions or disabilities similar to
those that exist in a •widow's estate', there is no justification for departing from this principle.
There is
certainly no such provision in Hindu Law and no text
could be supplied in support of the same.
fl) Vide Brijendra Prasad v, Gopal Prasad, 57 I.A. 296,
12) H W,R, 395.
(31 L.R.!,A. Supp. 47 at 65,
' -
S.C.R.
SUPREME COURT REPORTS
773
The position, therefore, is that to convey an absolute
estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such
amplitude as would convey full rights of ownership.
Mr. Banerjee naturally lays stress upon the description of the document as •Tamliknama' and the use of
the word ' Malik ' or owner in reference to the interest
which it purports to convey to the transferee. The
word ' Malik ' is of very common use in many parts of
India and it cannot certainly be regarded as a techni.
cal term of conveyancing.
In the language of the
Privy Council, the term •Malik' when used in a will or
other document " as descriptive of the position which
a devisee or donee is intended to hold, has been held
apt to describe an owner possessed of full proprietory
rights, including a full right of alienation, unless there
is something in the context or in the surrounding
circumstances to indicate that such full proprietory
rights were not intended to be conferred(')." This I
think to be a perfectly correct statement of law and I
only desire to add that it should be taken with the
caution which the Judicial Committee uttered in
course of the same observation that "the meaning of
every word in an Indian document must always depend
upon the setting in which it is placed, the subject to
which it is related and the locality of the grantor from
which it receives its true shade of meaning."
The question before us, therefore, narrows down to
this as to whether in the present case there is anything
in the context of these two connected instruments or in
the surrounding circumstances to cut down the full
proprietory rights that the word 'Malik' ordinarily
imports.
The High Court in reaching its decision adyerse to
the appellant laid great stress on the fact that the
grant was expressed to be for maintenance and residence of Mst. Meria. This, it is said, would prima
facie indicate that the grant was to enure for the lifetime of the grantee. It is pointed out by the learned
(l) Vide Sasiman Ohowdhuraif1. v 8hib Nar.'.iyaii, 49 I.A, '25, 85,
~
.. -
19!0
Ram Gopcil
v.
Natid Lal and
Oth1rs.
Jfukhtr jea_ J.
1950
Ram Gopal
v.
Nand Lal and
Othe-rs.
.. \1ukherjea J,
774
SUPREME COURT REPORTS
[1950]
Judges that the language of the document does not
show that anybody else besides the lady herself was to
be benefited by the grant and the indemnity given by
Babu Ram was also given to the lady personally. It
is further said that if Meria was given an absolute
estate in the properties comprised in the 'Tamliknama' .
there was no necessity for including these two properties again in the deed of relinquishment which she
executed at the same time.
I do not think that the mere fact that the gift of
property is made for the support and maintenance of a
female relation could be taken to be a Prima facie
indication of the intention of the donor, that the donee
was to enjoy the property only during her life. time.
The extent of interest, which the donee is to take,
depends upon the intention of the donor as expressed
by the language used, and if the dispositive words
employed in the document are clear and unambiguous
and import absolute ownership, the purpooe of the
grant would not, by itself, restrict or cut down the
interest. The desire to provide maintenance or residence of the donee would only show the motive which
prompted the donor to make the gift, but it could not
be read as a measure of the extent of the gift.
This was laid down in clear terms by the Judicial
Committee in a comparatively recent case which is to
be found reported in BishunathPrasad v. Chandrika(').
There a Hindu executed a registered deed of gift of
certain properties in favour of his daughter-in-law for
the" support and maintenance" of his daughter-in-law
and declared that the donee should remain absolute
owner of the property (malik mustaqil) and pay
Government revenue. There were no words in the
document expressly making the interest heritable or
conferring on the donee the power of making alienation.
It was held by the Judicial Committee that the donee
took under the document, an absolute estate with
powers to make alienation giving title valid after her
death. In course of the judgment, Lord Blanesburgh
quoted, with approval, an earlier decision of the
(1) 60 I.A. 56.
S.C.R.
SUPREME: COURT REPORTS
775
Judicial Committee, where the words "for your maintenance" occurring in a deed of gift were held insufficient
to cut down to life interest the estate taken by the
donees. These words, it was said, "are quite capable
of signifying that the gift was made for the purpose of
enabling them to live in comfort and do not necessarily
mean that it was to be limited to a bare right of
maintenance."
On behalf of the respondent, reliance was placed
upon the decision of the Judicial Committee in Raja
Ram Buksh v. Arjun(') in support of the contention
that in a maintenance grant it is the prima Jacie in ten.
tion of the gift that it should be for life. In my
opinion, the decision cited is no authority for the
general proposition as is contended for by the learned
Counsel for the respondent, and it is to be read in the
context of the actual facts of the case which relate to
grants of a particular type with special features of its
own. It was a case where a Talukdar made a grant
of certain villages to a junior member of the joint family for maintenance of the latter. The family was
governed by the Jaw of primogeniture and the estate
descended to a single heir.
In such cases the usual
custom is that the junior members of the family, who
can get no share in the property, are entitled to provisions by way of maintenance for which assignments of
lands are generally made in their favour. The extent
of interest taken by the grantee in the assigned lands
depends entirely upon the circumstances of the particular case, or rather upon the usage that prevails in the
particular family.
In the case before the Privy Council there was actually no deed of transfer. It was an
oral assignment made by the Talukdar, and the
nature of the grant had to be determined upon the
recitals of a petition for mutation of names made
to the Revenue Department by the granter after the
verbal assignment was made and from other facts
and circumstances of the case. The case of Woodoya.
ditta Deb v. Mukoond('), which was referred to and
relied upon in the judgment of the Privy Council, was
(!) 28 I.A, I.
(2) 22 W, R. 229.
1950
Rani Gopal
v,
Nand Lal an4
Other~.
Mukherjea J.
Ram Gop:Jl
v.
Nana. Lal and
Others.
Mukhtrjea J.
776
SUPREME COURT REPORTS
[1950]
also a case of maintenance or khor phos grant made in
favour of a junior member of the family, where the
estate was impartible and descended under the rules of
primogeniture. It was held in that case that such
grants, the object of which was to make suitable provisions for the immediate members of the family,
were by their very nature and also under the custom
of the land resumable by the zemindar on the death
of the grantee, as otherwise the whole zemindary
would be swallowed up by continual demands. This
principle bas obviously no application to cases of the
type which we have before us and it was never so
applied by the Privy Council, as would appear from
the decision referred to above.
The learned Counsel for the plaintiff respondent
drew our attention in this connection, to the fact that
the properties given by the ·Tamliknama' were valued
at Rs. 8,000, whereas the entire estate left by Mangal
Sen was worth Rs. 25,000 only. It is argued that the
transfer of nearly one-third of the entire estate in
absolute right to one who was entitled to maintenance
merely, is, on the face of it, against probability and
common sense.
I do not think that, on the facts of
this case, any weight could be attached to thfs argument. In the first place, it is to be noted that whatever
might have been the actual market value of the
properties, what the widow got under the Tamliknama
was a residential house and a shop, and the shop was
the only property which fetched any income. This
shop, it appears, was all along in possession of Sunder
Lal, the brother of Meria, and the rent, which he paid
or promised to pay in respect of the same, was only
Rs. 12 a month.
So from the income of this property
it was hardly possible for Meria to have even a bare
maintenance, and this would rather support the
inference that the properties were given to her absolutely and not for enjoyment merely, so long as she
lived.
But what is more important is, that the object of
creating these two documents, as the surrounding circumstances show, was not merely to make provision
S.C.R.
SUPREME COURT REPORTS
'777
fur the maintenance of Mst. Meria ; the other and the
more important object was to perfect the title of Nand
Lal to the estate left by Mangal Sen and to quiet all
disputes that might arise in respect of the same. It
may be that Mst. Meria could not, in law, claim any.
thing more than a right to be maintained out of the
estate of her deceased father-in-law. But it is clear
that whatever her legal rights might have been, Nand
Lal's own position as the sole owner of the properties
left by Mangal Sen was not altogether undisputed or
free from any hostile attack. As has been said already,
Sunder Lal, the brother of Meria, was in occupation of
the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to
it. It appears from the record that in 1920 a suit was
instituted on behalf of the infant N and Lal for evicting
Sunder Lal from the shop and the allegation in the
plaint was that Sunder Lal was occupying the property
as a tenant since the time of Mst. Mithani by taking
a settlement from her. Sunder Lal in his written
statement filed in that suit expressly repudiated the
allegation of tenancy and also the title of Nand Lal
and openly asserted that it was Mst. Meria who was
the actual owner of Mangal Sen's estate. The suit
ended in a compromise arrived at through the medium
of arbitrators and the result was that although Sunder
Lal admitted the title of the plaintiff, the latter had to
abandon the claims which were made in the plaint for
rents, costs and damages. Sunder Lal continued to be
in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal
promising to pay a rent of Rs. 12 per month. A few
months later, the Tamliknama was executed and this
shop along with the residential house were given to
Meria in maliki right. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate
that the supreme anxiety on the part of . Babu Ram,
who was trying his best to safeguard the interests of
the minor, was to put an end to all further disputes
that might be raised by or on behalf of Mst. Meria
with regard to the rights of N and Lal to the properties
1950
Rtt.m Gopal
v.
Nana Laland
Othsra.
.l!ukherj•a J.
19~0
Ram Gopal
v.
Nand Lal and
Others.
778
SUPREME COURT REPORTS
[1950]
of Mangal Sen and to make his title to the same
absolutely impeccable. That seems to be the reason
why Meria was given a comparatively large portion of
the properties left by Mangal Sen which would enable
her to live in comfort and her interest was not limited
to a bare right of maintenance. It is significant to
note that the shop room, which was all along in
possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made, Sunder Lal
executed a rent agreement in respect of the shop in
favour of Mst. Meria acknowledging her to be the
owner of the property.
It is true that the document does not make any
reference to the heirs of Meria, but that is not at all
necessary, nor is it essential that any express power
of alienation should be given. The word " Malik " is
too common an expression in this part of the country
and its meaning and implications were fairly well
settled by judicial pronouncements long before the
document was executed. If really the grantee was
intended to have only a life interest in the properties,
there was no lack of appropriate words; perfectly well
known in the locality, to express such intention.
The High Court seems to have been influenced to
some extent by the fact that in the Tamliknama there
was a guarantee given by Babu Ram to Meria herself
and to no one else agreeing to compensate her in case
she was dispossessed from the properties at the
instance of Nand Lal. This covenant in the document
was in the nature of a personal guarantee given by
Babu Ram to Mst. Meria for the simple reason that
the property belonged to an infant and it was as
guardian of the minor that Babu Ram was purporting
to act. It was too much to expect that Babu Ram
would bind himself for all time to come and give a
guarantee to the future heirs of Meria as weH. Probably
no such thing was contemplated by the parties and no
such undertaking was insisted upon by the other side.
But whatever the reason might be which led to the
covenant being expressed in this particular form, I do
not think that it has even a remote bearing on the
S.C.R.
SUPREME COURT REPORTS
779
question that arises for our consideration in the present
case. It is of no assistance to the plaintiff in support
of the construction that is sought to be put upon the
document on his behalf.
I am also not at all impressed by the other fact
referred to in the judgment of the High Court that if
the properties were given to Meria in absolute right,
there was no necessity for including them again in the
schedule to the deed of relinquishment which Meria
executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate
that Meria's rights to these properties were of a
restricted and not an absolute character. It is after all
a pure matter of conveyancing and the two documents
have to be read together as parts of one and the same
transaction. Under the 'Tamliknama ', Meria got two
properties in absolute right out of the estate of Mangal
Sen. By the deed of relinquishment, she renoupced her
claim for maintenance in respect of all the properties
left by Mangal Sen including the two items which she
got under the 'Tamliknama'. After the ' Tamliknama'
was executed in her favour, there was no further
question of her claiming any right of maintenance in
respect of these two items of property. She became
the absolute owner thereof in exchange of her rights of
maintenance over the entire estate and this right of
maintenance she gave up by the deed of relinquishment.
On a construction of the entire document, my
conclusion is that there is nothing in the context of the
document, or in the surrounding circumstances which
would displace the presumption of full proprietary
rights which the use of the word " Malik" is apt
ordinarily to convey. The first contention of the
appellant, therefore, succeeds and in view of my
decision on this point, the second question does not
arise for determination at all.
The result is that the appeal is allowed, the judgment
and decree of the High Court are set aside and those of
the trial Judge restored. The defendant No. 6 will have
his costs from the plaintiff in all the courts. There will
be no order for costs as regards the other parties.
1950
Ram Gopal
v.
Nand Lal and
Others.
llfukherjea J
780
SUPREME COURT REPORTS
[1950]
1950
FAZL ALI J.-I agree with the judgment delivered
Ram Gopal
by my learned brother, Mukherjea J.
v.
CHANDRASEKHARA AIYAR J.-During the hearing of
Nand Lal and the appeal I entertained doubts whether the view taken
Oth"'·
by the High Court was not correct. But on further
consideration, I find that it cannot be maintained,
having regard to the terms of the ' Tamliknama '
(deed of transfer) in favour of Musammat Meria and
the context in which it came into existence. The name
of the document or deed does not verv much matter.
Though the word 'malik ' is not a term of art, it has
been held in quite a large number of cases, decided
mostly by the Judicial Committee of the Privy Council,
that the word, as employed in Indian documents,
means absolute owner and that unless the context
indicated a different meaning, its use would be sufficient
to convey a full title even without the addition of the
words, •heirs', or ' son ', 'grandson' and 'great
'
grandson'. Of course, if there are other clauses in the
document which control the import of the word and
restrict the estate to a limited one, we must give the
narrower meaning; otherwise the word must receive'
its full significance. Especially is this so, when the
rule of interpretation laid down in A1ohammed Shamsul
v. Sewak Ram(') has come to be regarded as unsound.
The language employed in the
'Tamliknama '
(Ex. II) is almost similar to the language of the deeds
construed in Bhaidas Shivdas v. Bai Gulab & Another(')
and Bishunath Prasad Singh v. Chandika Prasad
Kumari and Others(') where it was held that an absolute
estate was conveyed.
I agree that the judgment and decree of the High
Court should be set aside and that the decree of the
trial Judge should be restored with costs to the appellant in all the Courts.
.
Appeal allowed.
Agent for the appellant: R.K.Kuba.
Agent for the respondents: S. P. Varma.
l~I '9 I.A. L
(8) 60 I.A. 66.